Amigo v Republic [1985] KECA 25 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that when two lower courts agree on the facts of a criminal case, a further appeal will fail unless a genuine point of law is raised.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there was proof of robbery against the appellant at the time of his arrest
- 2.Whether the appellant's statements to the police were voluntary
- 3.Whether the identification parade was conducted fairly, the appellant alleging the parade officer communicated his identity to the complainant
- 4.Whether the appellant's conviction could be sustained on the complainant's evidence of recognition
Key legal issues
#Weight of first-instance fact findings on second appeal
The Court of Appeal, as a second appellate court, will not disturb concurrent findings of fact where no point of law arises, since the trial court had the advantage of seeing the witnesses.
Both the trial court and the first appellate court had accepted the complainant's account of the robbery and the voluntariness of the appellant's statements. The appellant identified no point of law, so the second appellate court's role was confined to accepting those concurrent findings; it could only note, obiter, that the trial court did not heavily rely on the confession statement.
Alleged unfairness of the identification parade
The allegation that the parade officer communicated the appellant's identity to the complainant failed because there was nothing on the record from which it could be inferred, and the trial court had carefully considered the matter.
The court examined the recorded evidence and concluded that the questions of fact had been decided against the appellant in the only reasonable way. Given that the complainant had a prolonged, daylight interaction with the appellant during the robbery - handing him the car keys, bags of cash and his watch - his recognition of the appellant at the parade some six weeks later was unsurprising.
Nothing incriminating found at arrest
That nothing incriminating was found on the appellant when he was arrested, leading to his acquittal on another robbery count, did not undermine his conviction on the count where his admission and recognition evidence applied.
The court accepted that the arrest occurred at the appellant's home and that nothing incriminating was found, as confirmed by the arresting officer. However, the information given by the fourth accused was not evidence against the appellant, and his acquittal on the other charge did not affect the conviction on the second count, which rested on the complainant's recognition and his own statement.
Legal principles established
#- A second appellate court accepts the findings of fact of the courts below where no point of law arises, deferring to the trial court's advantage of seeing and hearing the witnesses.
- Evidence of an accomplice or co-accused given to the police that leads to an arrest is not evidence against the accused and cannot be held against him.
Court orders
#- 1.The appeal against conviction is dismissed
- 2.The sentence as varied by the High Court (10 years' imprisonment and five strokes of corporal punishment) stands
- 3.The appeal is dismissed in its entirety
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Kisumu
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court in criminal matters
Relief refused
#Appeal against conviction and sentence
No valid grounds were shown; the complainant's recognition evidence and the trial court's factual findings were upheld and no point of law arose
Costs
No costs order made (criminal appeal; the appeal was simply dismissed in its entirety)
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As no point of law arises, this court accepts the findings of the courts below.
What the fourth accused told the police about this appellant which led to the appellant’s arrest, was not evidence, and was not held against the appellant.
There is nothing on the record from which this can be inferred. The trial court considered this matter carefully.
It is not surprising that Mr Patel recognized the appellant on the identification parade.
The sentence as varied by the High Court must stand. The appellant will undergo 10 year’s imprisonment and five strokes of corporal punishment.
The appeal is dismissed in its entirety.
Issues in the judgment
#The judgment inconsistently describes the appellant as the third accused in the body and the fourth accused in a heading; the court itself notes this confusion
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amigo v Republic [1985] KECA 25 (KLR)", Case Analysis (1985). Criminal Appeal No 175 of 1984. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1985/25/eng@1985-06-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.